Doe dem. Marriott against Edwards and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1086
IN THE COURT OF KING'S BENCH
S. C. 3 N. & M. 193: at Nisi Prius, 6 Car. & P. 208. Referred to, Trent v. Hunt, 1853, 9 Ex. 23.
doe dem. marriott against edwards and others. 1834. In ejectment by landlord against tenant for a forfeiture, it is a good defence that the landlord, after the execution of the lease, conveyed away his title to the premises by mortgage; although it be not shewn that any interest on the mortgage is in arrear, or that the mortgagee has made any claim, or otherwise enforced bis rights as against either landlord or tenant. [S. C. 3 N. & M. 193: at Nisi Priius, 6 Car. & P. 208. Eeferred to, Trent v. Hunt, 1853, 9 Ex. 23.] Ejectment for messuages, &c. At the trial before Parke J. at the sittings in Middlesex in this term, it appeared that the lessor of the plaintiff proceeded for a forfeiture incurred by nonpayment of rent, and other breaches of covenants in a lease. The lessor had mortgaged the premises, and afterwards (December 6th, 1831) granted the lease to one Greenacre, who became bankrupt, and whose assignees the defendants were. After granting the lease, he executed a second mortgage (February 17th, 5 B. & AD. 1066. TAYLOR V. HELPS 1087 1832), reciting the first, and assigning to the second mortgagee all his right, interest, &c. in the premises, both at law and in equity. It did not appear that the defendant had paid any rent since this mortgage. The learned Judge, upon proof of these facts, was of opinion that the lessor of the plaintiff could not maintain the action, the legal estate being no longer in him ; and he directed a nonsuit. [1066] Gale, in this term (a), moved for a rule to shew cause why the nonsuit should not be set aside, and a new trial had. The defendant could not set up the second mortgage against his landlord, unless there had been a default in payment of the interest, and the mortgagee had taken proceedings upon such default. " If the defendant" (in ejectment) "produce a mortgage deed, where the interest has not been paid, and the mortgagee never entered, it will not be sufficient to defeat the lessor, who claims under the mortgagor, because it will be presumed that the money was paid at the day, and, consequently, that it" (the mortgage) " is no subsisting title :" Bull. N. P. 110. Buller J., in Doe dem. Bristowe v. Pegge (I T. R. 760, note (a)), states it as clear law, that a tenant cannot set up the title of...
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